Tuesday, January 9, 2007

Early Confrontation Comes REALLY Early - Strickland Vetoes Anti-Consumer Law

Yesterday at the inauguration of State Treasurer Rich Corday (D-Grove City) in Columbus I had a chance to chat briefly with freshman State Representative Matt Lundy (D-Elyria), a former TV political and investigative journalist. We agreed that an early confrontation between the GOP-controlled General Assembly and new Governor Ted Strickland (D-Lisbon) was likely, and that whatever form that confrontation took it would be important for the new governor to assert his authority by taking a very tough stance. "He's got to show them that they are not on his level," I think were Lundy's words.

What we didn't know is that the confrontation was developing even as we spoke. As reported in the Columbus Dispatch yesterday and discussed on Buckeye State Blog today, the new governor yesterday issued a veto of Amended Substitute Senate Bill 117, which outgoing Gov. Bob Taft had decided to allow to become law without his signature.

Among other things, SB 117 granted immunity to manufacturers of lead-pigment paints against public nuisance lawsuits. Such companies would still be subject to personal injury suits, but those suits are virtually impossible to win because of the difficulty of proving which company manufactured the lead-based paint in a particular dwelling. Municipalities had begun to use public nuisance suits to try to collect money to pay for lead-based paint abatement in impoverished urban neighborhoods. Sensing that the GOP's opportunity to help out their friends and contributors in the paint industry was coming to a close with Strickland's inauguration, the General Assembly rushed this provision through the lame duck session.

The bill also severely limited damages that consumers can collect under consumer protection laws (capping non-economic damages at $5,000), crippling the new measures against predatory lending. Former Attorney General Jim Petro (R-Rocky River) joined new Attorney General Marc Dann (D-Liberty Township) and local leaders and consumer advocates in opposing this aspect of the bill, but it was railroaded through the lame duck session on a party line vote without a hearing.

Gov. Taft did not object to the lead-based paint aspect of the bill, but opposed the cap on consumer damages. Hence the decision to allow it to become law without his signature.

Under the Ohio constitution, a bill becomes law if the governor does not sign it within ten days after it is delivered to the governor, Sundays excepted. Taft interpreted this ten day period as beginning the day the General Assembly adjourned, not the day that the bill was actually sent to his office. Thus, Taft figured the time period ended on Friday, January 5 , but Strickland (in consultation with Dann, new legal counsel Kent Markus, and new Secretary of State Jennifer Brunner) concluded it didn't end until Monday, January 8.

Jerid at BSB did some legal research and sets out his findings. It looks like there is legal support for Strickland's interpretation of when the ten day period begins. However, the unprecedented circumstance that Strickland is attempting to veto a bill submitted to a prior governor may complicate the issue. It is certain to be litigated, and Dann has vowed to vigorously defend it. (He also offered to counsel GOP legislative leaders on their rights as far as opposing the veto. No word on whether they will seek his input.)

The public comments by the players are very telling. GOP leaders, of course, are screaming foul. Rep. Bill Seitz (R-Cincinnati), a primary backer of the bill, said the veto "went a long way towards draining whatever reservoir of goodwill would have otherwise attended his first day in office. It damages (relations) in the way that we would prefer to have it damaged, which is the first act of war being declared by them. If that’s the bed they want to make, they can lie in it."

In his veto message Strickland wrote, "I will not allow this legislation in its current form, which drastically undermines current consumer protections, to go into effect during my administration." At a press conference yesterday he said, "What I think this bill represents is hasty action during a lame-duck session, where there is not sufficient discussion, input or deliberation." Ohio Democratic Party Chair Rep. Chris Redfern (D-Catawba Island) hailed the action, saying "The people of Ohio won, and we now have a governor who will stand up to the special interests and put families first."

These are critical early developments that will shape the relationship between Strickland and GOP legislative leaders and largely set the tone for the next two years. By ramming controversial bills through the lame duck session, the GOP had already laid down the gauntlet. The question was whether Strickland would act decisively and boldly in response, and he has. In this one act he has upstaged the GOP leadership, turned the political tables, and signalled that he will not back down from a fight.